The approval and confirmation of a detention order under the NSA are not valid if material facts having a bearing on the matter are not placed before the State Government.

( 1 ) BY means of this petition filed under Art. 226 of the Constitution of India, the petitioner Vikram Pratap Singh has challenged the order of his detention dated 11-2-1985 passed under S. 3 (2) of the National Security Act (hereinafter referred to as the Act) by the district Magistrate, Varanasi (hereinafter referred to as the detaining authority ).

( 2 ) THE order of detention was served on the petitioner the same day. It was based only on one ground which related to an incident which had taken place on 10-10-1984 at 2. 30 A. M. outside the Tato Gate of the Railway Station, Varanasi Cantt. in which the petitioner is alleged to have pushed Sri O. P. Gupta, Divisional Engineer Mechanical, North-Eastern Railway, Varanasi when he was about to board a jeep after getting down from his saloon for his residence. The petitioner did not only push Sri Gupta but also fired at him with his revolver causing him fatal injury. The FIR of this incident was lodged at P. S. G. R. P. Cantt. by Sri S. K. Mukerjee, on the basis of which Crime case No. 322 of 1984 under S. 302 I. P. C. was registered. The petitioner was, however, not named in this F. I. R. A test identification parade was, however, held on 7-2-1985 in which the petitioner was not picked up by any witness. However, on a report made to the detaining authority by the police, the detaining authority was satisfied that the above activity of the petitioner created a terror in the locality which was prejudicial to the maintenance of public order. On being thus satisfied, he passed the impugned order against the petitioner.

( 3 ) THE petitioner challenged the above detention order passed against him by means of Habeas Corpus Writ Petn. No. 2758 of 1985 which was dismissed by a Division Bench of this Court on 24-5-1985 : (reported in 1985 All LJ 958 ). The petitioner has again filed this petition with the same prayer on the basis of ground not taken in his earlier petition.

( 4 ) THE main ground on which the petitioner has challenged his detention by means of this petition is that the result of test identification parade of 7-2-1985 in which the petitioner was not picked up by any witness was not placed before the detaining authority when he passed the order of detention. Not only this, this material was also not placed before the State Government either at the time of according its approval under S. 3 (4) of the Act or at the time of its confirmation under S. 12 (1) of the Act. It is urged that since this ground was not taken by the petitioner in his earlier petition, he is entitled to agitate the same by means of this petition.

( 5 ) THE first objection to this petition that it is not maintainable on account of the dismissal of the petitioners earlier Habeas Corpus Writ Petition No. 2758 of 1985 : (reported in 1985 All LJ 958) cannot, in view of the decision of the Supreme Court in Kirit Kumar v. Union of India, AIR 1981 SC 1621 be accepted. This question was also raised in the case of Lallubhai Jogibhai v. Union of India, AIR 1981 SC 728, a case relied upon by the Supreme Court in Kirit Kumars case. In Lallubhai Jogibhais case, the Supreme Court, after considering various pronouncements on this question, summed up the legal position as under : -"the position that emerges from a survey of the above decisions is that the application of the doctrine of constructive res judicata is confined to civil actions and civil proceedings. This principle of public policy is entirely inapplicable to illegal detention and does not bar a subsequent petition for a writ of habeas corpus under Art. 32 of the Constitution on fresh grounds, which were not taken in the earlier petition for the same relief. "

( 6 ) THE above question has also been considered by a Division Bench of this Court in Sushil Kumar v. Adhikchhak Kendriya Karagar, Naini, 1983 Cri LJ 744.

( 7 ) IN view of the above decisions, it is now too late in the day to contend that the second Habeas Corpus petition filed by